948 F.2d 1562 (10th Cir. 1991), 91-5024, Miller v. Glanz

Docket Nº:91-5024.
Citation:948 F.2d 1562
Party Name:Marcus R. MILLER, Plaintiff-Appellant, v. Stanley GLANZ, Sheriff, Bob Bates, Deputy Sheriff, Dan Cherry, Captain, Lance Ramsey, Deputy Sheriff, Jerry Bagby, Deputy Sheriff, George Rogers, Deputy Sheriff, DeWayne Harris, Deputy Sheriff, Don P. Holyfield, Director, Clent Dedek, Commissioner, John Doe, Investigator, Dr. Barnes, John Doe, Deputy Sherif
Case Date:November 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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948 F.2d 1562 (10th Cir. 1991)

Marcus R. MILLER, Plaintiff-Appellant,


Stanley GLANZ, Sheriff, Bob Bates, Deputy Sheriff, Dan

Cherry, Captain, Lance Ramsey, Deputy Sheriff, Jerry Bagby,

Deputy Sheriff, George Rogers, Deputy Sheriff, DeWayne

Harris, Deputy Sheriff, Don P. Holyfield, Director, Clent

Dedek, Commissioner, John Doe, Investigator, Dr. Barnes,

John Doe, Deputy Sheriff, Jane Doe, Nurse # 1, Jane Doe,

Nurse # 2, Johnny F. Dirck, Director of Council on Law

Enforcement Education and Training, Defendants-Appellees.

No. 91-5024.

United States Court of Appeals, Tenth Circuit

November 18, 1991

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Marcus R. Miller, pro se.

Robert H. Henry, Atty. Gen., and Gay Abston Tudor, Asst. Atty. Gen., State of Okl., David Moss, Dist. Atty., and M. Denise Graham, Asst. Dist. Atty., Tulsa, Okl., and John K. Lindsey, Dept. of Public Safety, Oklahoma City, Okl., for defendants-appellees.

Before ANDERSON, TACHA and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Plaintiff-appellant Marcus R. Miller appeals from a district court order dismissing his 42 U.S.C. § 1983 claims for use of excessive force, deliberate indifference to medical needs, false imprisonment, malicious prosecution, cruel and unusual punishment, biased investigation, discriminatory acts to prolong incarceration, negligent failure to train and certify deputies, and intentional infliction of emotional distress. On appeal, Miller argues that the district court erred in granting defendants' motion to dismiss all of his claims under Federal Rule of Civil Procedure 12(b)(6). In particular, he contends that his complaint, when examined under the less stringent standards afforded pro se plaintiffs, alleges facts sufficient to state a claim, thus entitling him the right to offer evidence to support his claims. We exercise jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings. 1


Because we are reviewing a motion to dismiss granted by the district court under Rule 12(b)(6), the facts we consider on appeal are those contained in the plaintiff's Amended Complaint of August 8, 1990. 2 On December 13, 1989, Appellant Miller--while incarcerated in the Tulsa City-County Jail 3--became involved in an altercation with Deputy Sheriff Lance Ramsey. Miller had been doing research in the jail's law library and apparently had left the research room without permission. Deputy Ramsey informed Miller that his library privileges were terminated for the day and asked Miller to place his hands behind his back so that Ramsey could handcuff Miller and escort him back to his cell. When Miller refused to be handcuffed behind his back, Deputy Ramsey attempted to use force to handcuff Miller and apparently knocked Miller to the floor. A scuffle ensued and Deputy Ramsey subsequently was able to move Miller and lock him in a nearby holding cell. This scuffle was the subject of a criminal trial in Oklahoma state court in which Miller was convicted of assaulting Officer Ramsey.

After placing Miller in the holding cell near the law library, Deputy Ramsey called Deputy Sheriffs Bob Bates and Jerry Bagby. When Bates, Bagby, and an unnamed officer (referred to as John Doe) arrived, they allegedly assaulted Miller, handcuffed his hands behind his back, cuffed his ankles, and beat, choked, kicked and stomped Miller. They also allegedly forced Miller to walk barefoot to his cell, where they handcuffed Miller's arms to the bunk and cuffed his legs to the bars. Miller remained in what he claims was an awkward and painful position for almost two

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hours. Miller purportedly heard Deputy Bates claim that this form of cuffing inmates was part of the jail's normal policies and procedures. In his complaint, Miller claims that he suffered pain, bruises, internal injuries and emotional distress caused by the actions of these officers.

During the days following this incident, Miller submitted several sick call requests, but claims that no medical personnel responded. He claims that although Nurse Robbie Moore treated his cement burns and a Doctor Barnes saw him on December 19th and December 26th, neither the doctor nor the nurses properly examined him for bruises or for neck, shoulder, back and internal injuries.

The district court, in an order filed January 29, 1991, dismissed several of appellant's claims on the basis that they were barred by the doctrine of collateral estoppel and dismissed the remainder of the claims because they failed to state a claim for which relief could be granted.


We review de novo a district court's ruling on a motion to dismiss for failure to state a claim upon which relief can be granted. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Allegations in the plaintiff's complaint are presumed true. Curtis Ambulance of Fla., Inc. v. Board of County Comm'rs, 811 F.2d 1371, 1374 (10th Cir.1987). The complaint will not be dismissed unless it appears that the plaintiff cannot prove facts entitling him to relief. Id. at 1375 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). We construe a pro se litigant's pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989).

Prior to addressing each of appellant's arguments on appeal, we examine the process under Rule 12(b) for ruling on a motion to dismiss for failure to state a claim. The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted. In this case, we look to plaintiff's amended complaint filed pursuant to Rule 15(a) because the amended complaint supersedes the original.

Rule 12(b) provides that if matters outside the complaint are presented to and not excluded by the court, then the court should treat the motion as one for summary judgment under Rule 56 and not as a motion to dismiss. Fed.R.Civ.P. 12(b); see also Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972). Failure to convert to a summary judgment motion and to comply with Rule 56 when the court considers matters outside the plaintiff's complaint is reversible error. Ohio v. Peterson, Lowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir.1978); Torres v. First State Bank of Sierra County, 550 F.2d 1255, 1257 (10th Cir.1977). A district court's review of "mere argument contained in a memorandum in opposition to dismiss" does not require conversion to a summary judgment motion. Peterson, 585 F.2d at 457. In Peterson, we also concluded that when a conversion to a Rule 56 motion is proper, "the trial court should give the parties notice of the changed status of the motion and thereby provide the parties to the proceeding the opportunity to present to the court all material made pertinent to such motion by Rule 56." Id. at 457.

In this case, the district court clearly relied on materials outside of plaintiff's amended complaint to dispose of at least some of plaintiff's claims under Rule 12(b)(6). In its order, the court stated that plaintiff "had a full and fair opportunity to defend himself against the claim of assault and battery upon a police officer at trial"; the court also referred to certain defenses that plaintiff raised and that the jury rejected at the state court trial. From these references, it is clear that the court reviewed materials outside of plaintiff's amended complaint in determining whether to grant defendant's motion to dismiss.

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Additionally, in deciding to dismiss plaintiff's claims for deliberate indifference to medical needs, the district court stated that "the record indicates that the plaintiff was seen eleven (11) times by either a doctor or nurse between December 13, 1989 and January 3, 1990." Because we do not find reference to these eleven visits in plaintiff's complaint or in plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss, we can only assume that "the record" refers to the state criminal trial record or to other evidentiary matters beyond plaintiff's pleadings.

Finally, also in relation to plaintiff's deliberate indifference claim, the court cites to a medical chart and to an affidavit labeled as "Exhibit C to defendant's Motion to Dismiss." The district court's consideration of the medical chart, of the affidavit, and of other material outside of plaintiff's amended complaint was improper when considering whether to dismiss pursuant to a 12(b)(6) motion. Ryan v. Scoggin, 245 F.2d 54, 57 (10th Cir.1957) (motion should have been treated as one for summary judgment when transcript of trial court proceedings were presented to and not excluded by the court).

The district court's order reveals that the court failed to convert defendants' motion to dismiss into a motion for summary judgment. In disposing of each of plaintiff's claims, the court specifically stated that defendants' "motion to dismiss" is granted. Thus, the court never informed plaintiff that the motion to dismiss had been converted into a summary judgment motion and never afforded plaintiff ten days to accumulate evidence demonstrating the existence of a genuine issue of material fact prior to a Rule 56 evidentiary hearing. However, despite the district court's consideration of matters outside plaintiff's complaint, the court's error in failing to convert the motion and to comply with Rule 56 is harmless if the dismissal can be justified under Rule 12(b)(6)...

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